Sklyarov Indictment 'Not Unusual'

Michelle Delio
08.29.01

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The indictment of Dmitry Sklyarov on Tuesday was just a first -- and predictable -- move in what may be a long legal chess game, experts say.

When the scheduled indictment of the Russian computer programmer was postponed last Wednesday, Sklyarov's supporters had hoped the case would be dropped and the Russian programmer would soon be released and allowed to return home.

But neither the postponement nor subsequent decision to proceed with the indictment are unusual, and are actually to be expected in this complicated case, said lawyers, legal experts and others familiar with the case.

"The defendant probably wanted to not be prosecuted at all or else requested a non-felony plea," Edward Hayes, a Manhattan criminal attorney and CourtTV anchor, said. "The Department of Justice couldn't find a legal reason to drop the case, and the defendant's lawyer couldn't get what he wanted, so legally they have to move on to the next step, which is an indictment."

"The indictment is simply a statement that the grand jury has found that enough evidence exists for him to be charged with a crime," Hates said. "There are no surprises here, and it's not as bad as it sounds because most cases such as this would proceed in this fashion."

Joseph Burton, Sklyarov's attorney, had told reporters from Reuters and the Associated Press last Wednesday that he wanted prosecutors to drop the case against Sklyarov, and said he was not specifically interested in a plea bargain -- although he would not rule it out.

He asked for Sklyarov's scheduled indictment hearing to be pushed back a week so that negotiations could continue.

The indictment filed on Tuesday charges both Sklyarov and his employer, ElcomSoft, with five separate counts of "conspiring, for commercial advantage and private financial gain, to traffic in a technology that was primarily designed and produced for the purpose of circumventing, and was marketed by the defendants for use in circumventing, the Adobe Acrobat eBook Reader."

The conspiracy charges, and the addition of ElcomSoft to the case, are new developments, said retired British barrister Ian McDonnel.

"They are going to have a difficult time making a case just against the guy who programmed the software," McDonnel said. "So they needed to add the company who sold it to the case, and that brings up the conspiracy charges. It's a way to tie it all together. It links the programmer and his employer. I assume they will be represented by separate lawyers, so it's not a huge legal concern."

Harvey Jacobs, an attorney specializing in Internet law, suspects that Sklyarov's arrest may have been nothing more than an attempt to get his employer into a courtroom.

"I suspect the 'seizure' of Mr. Sklyarov was to aid the DOJ (Department of Justice) obtain personal jurisdiction over his employer," Jacobs said. "It would have been a far harder case to make without some minimal contacts to U.S. soil. As for adding the corporation as a criminal defendant, it actually makes more sense to go after the entity that was actually making a buck from the program then to go after the cryptographer.

"No one will be happy to see this fellow rotting in a U.S. jail, but I doubt anyone would get too charged up if ElcomSoft had to disgorge all of its profits from this program and/or pay a hefty fine," Jacobs said. "This would have the legislatively desired affect of chilling those who violate the DMCA (Digital Millennium Copyright Act) for profit, but might still allow legitimate scholarship and research into these areas to flourish."